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Best Interests Standard in Texas
What is the ‘best interests’ standard?
So what are the best interests of a child? The law authorizes the judge to consider a wide range of factors, and does not limit the scope of consideration. We’ve covered this more extensively in a blog post, but a brief overview of relevant factors includes:
- The amount of time each parent can and will spend with the child, as well as the amount of time each parent has historically spent with a child.
- Each parent’s role in the child’s life. A parent who has previously been uninvested in time with a child, or who has not shown an ability to care for the child, is unlikely to change.
- The emotional and physical health of each parent. Mental and physical illness are not reasons to deny custody, but the judge will weigh how these factors affect the child.
- The willingness of each parent to maintain the child’s relationship with his or her other parent. A child needs both parents, so a parent who has a history of actively working to undermine the child’s relationship with the other parent is at a disadvantage.
- Each parent’s history of abuse, substance abuse, dangerous behavior, or other factors that could endanger the child or undermine the parent’s ability to provide the child with a safe, stable, nurturing environment.
- The people with whom the child will interact with at each house. Loving family members can help your case. Exposing your child to potentially dangerous people—such as a drug abuser or a significant other with a history of child abuse—can harm your case, and may even cause you to lose custody altogether.
- The support each parent has, since single parenting is difficult and supportive relatives can help with child care, discipline, and other needs.
- Whether or not the home environment is safe. Minor differences in cleaning standards or neighborhoods won’t matter. But a judge is unlikely to send a child to live with a hoarder, a person whose home is unsanitary enough to be dangerous, someone who has guns lying around the house, or a parent whose home environment is extremely dangerous or unstable.
- Your parenting style. The judge will compare parenting styles, and weigh which parent offers a better environment. Factors such as spanking, verbal abuse, neglect, or a history of unkind or unstable behavior may weigh against you.
- Any special needs of the child, and the ability of each parent to meet those needs. For example, a parent who denies that a child needs services for his or her disability, or who punishes a disabled child for behavior he or she cannot control, may be less likely to get custody.
- The child’s wishes. The court is not required to consider what your child wants, but this can matter—especially if the child articulates a clear issue with one parent. For example, a child who says he does not wish to live with one parent because of that parent’s history of abuse will be taken seriously—particularly if the child is older. The testimony of older children almost always counts for more.
Is child custody different for parents who are not married?
Child custody decisions are based on the child’s best interests, not on a presumption in favor of either parent, or any specific child custody arrangement. This is true even when the parents are not married. Mothers and fathers are equal parents under the law, unless and until a judge decides otherwise.
There’s one exception to this rule: if a father has not been named the legal father of the child, he has no rights to the child, even if he is the child’s biological father or already has a relationship with the child. To change this, fathers must go through a process of legitimation. During this process, the court legally declares the father the child’s father. Once a child has been legitimated, the father has equal rights to the child, as well as equal obligations, such as the obligation to pay child support.
What happens if the parents live in different states?
If the parents live in different states, the best interests of the child standard still applies. However, the court might look at additional factors, like which geographic location is best for the child. In most cases, moving away from a familiar neighborhood and school will not be in a child’s best interests, though there may be other factors compelling a move.
Parents who live in different states still maintain rights to their children. So even if one parent moves, that parent still has the right to visitation. The court may add language in its order clarifying which parent must bear the expense of visitation, or whether the parent who lives in a different state must return to Texas, or has the right to bring the children to their state, for visitation.
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